Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes. However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.

A FAMILY court judge ruled that the custody of Child A should be awarded to her mother after she convinced him in a one hour-interview in his chambers that she would be happier with her mother.

In another case, Child B pleaded and cried to stay with her father but she was ordered to go and live with her mother. The judge presiding over her case did not believe her testimony and was convinced that she had been brainwashed by her father and his relatives.

Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes.

However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.

One strong opponent is the Bar Council’s Family Law Committee chair Lalitha Menon.

“Most family judges are not even trained in family matters, on what principles should apply and what they should look at, what more child psychology. How can they decide on what the child needs based solely on their interview with him or her?”

Menon stresses that it is not easy to interview a child. “It is not a simple case of asking the child simple questions like: ‘Who do you like more?’ or ‘Who is a better parent?’

“Judges must understand that children may be coached or trained by the parent holding custody, so the questions have to be couched differently and judges will have to learn to read between the lines to get to the truth. They need a lot of training for that.”

The Bar’s Family Law Committee has been pushing for training for the judges but to no avail, says Menon.

“They need to learn how to recognise and understand the nuances (and deeper issues).

“Even family lawyers sometimes have difficulty handling these cases, what more judges who are not sufficiently trained. Many are having a tough time,” she notes.

Family law practitioner Honey Tan concurs, revealing that there are a few who are not even well-versed in the country’s Family Law or Law Reform (Marriage and Divorce) Act 1976.

“A lot of the time, you get judges hearing family matters who have no training; they come from the criminal bench, civil or industrial bench. Training is crucial for judges who will be sent to handle family matters so that they can mainly dissociate from their own personal experiences and objectively look at what is at hand,” says Tan.

Menon agrees, pointing out that many judges who are sent to the Family Court draw on their own experiences as parents to help them decide on cases.

“For example, we find that many judges are not aware or do not appreciate that parental alienation happens. Because they are good parents, they cannot imagine anyone subjecting their children to such emotional abuse.

“The reality is there are parents who subject their children to alienation in the course of their divorce and custody fights,” she says.

Another problem is the lack of best practices, procedures, rules and directions to guide the judges.

“Currently, the practice is slightly erratic as different judges have different practices. Some take expert advice; some don’t; some read the welfare reports; some think that they are unnecessary. We’ve drawn up a set of guidelines that we think is necessary and submitted it to the managing judge but the court has not adopted it yet. There is no consensus on basic practice procedures,” says Menon.

Crucially, it is important that whoever is put in charge of family matters need to be sent for a course and given basic training on important aspects of family law, she says.

Menon feels that family law does not seem to be a priority for the judges.

“Certain procedures are not adhered to because they think it is ‘family’; certain basic requirements are not followed. There’s too much laxity, and there seems to be an ‘anything goes’ attitude among the judges. Even those who are known to be cautious about following procedures in other areas have thrown caution to the wind when it comes to family matters,” Menon says.

Tan believes that we need to take a leaf out of the Singapore Family Court’s book.

“Last year at the Bar Council’s International Law Conference, we had a speaker from the Singapore Family Court – a judge. She told the conference that in Singapore, the Family Court judges rarely interview children because they are not experts in child psychology or child care. They rely on the reports of real experts like child psychologists and welfare officers who assess the children involved in these cases.”

Consultant psychologist Valerie Jaques supports the idea of having psychologists to help in custody conflicts. “However, they must be trained in the area of assessment, especially of personality and predictors of behaviours. This way, both parents who are interviewed and assessed can be profiled. Deviant or abusive personalities can then be identified and children can be better protected by the system. Currently, there are challenges and limitations in the types of assess­ments done for child custody cases as well.”

But Jaques feels strongly that children should not be interviewed about which parent they want to live with.

“A child should never be asked to make these decisions,” she stresses. “Developmental­ly, children have not reached their full potential to make good decisions. This is why they are under the care of parents who, we hope, will look into their best interest. Even teenagers are still under the care of their parents and need consent in making decisions. So how can a child below 12 years old be able to know what they want?”

She says that when a child is made to choose, he or she is placed in a difficult position, which creates more stress, trauma, confusion, and fear of rejection, among others.

Child protection consultant Vijayakumari Pillai also believes that a child should not be allowed to decide in custody conflicts because he or she could be coached by the parent with whom she or he is living.

She says that some parents who have interim custody sometimes cook up all kinds of excuses not to allow access or visitations. A child who has not seen the other parent might have been told that the other parent does not care, or other horror stories, she explains. “A young child will believe that. Sometimes you have grandparents also involved in coaching the child.”

She says the system where professional social workers prepare a guardian ad litem (GAL) report for the court should be encouraged.

“The GALs are qualified social workers with considerable experience of child matters and a sound understanding of the family laws. The role of a GAL is to ensure that the child’s wishes and best options are made clear to the court. To do this, the GAL has to spend time getting to know the child, which may take a few sessions because some children can take a long time to trust someone whom they have never met before.”

Pillai adds that the GAL will have to make home visits, sometimes talk to the child outside the family home, or find out through casual questions about who spends quality time with the child. “The GAL has to meet the parents separately, meet members of the family who live in the same household, talk to school teachers, even the doctors that the child sees regularly, and the grandparents. The parents’ attitude and parenting style must also be taken into consideration.”

Tan, however, points out that there are not enough social workers or experts in Malaysia to handle these cases.

More urgently, says senior lawyer and Sunday Star columnist Roger Tan, family division or courts need to be set up throughout Malaysia so that judges specialised in family law can preside over family law cases.

Since it was mooted in 2000, only the Kuala Lumpur High Court has such a court at the moment.